A no-frills Hawaii digest. Updated frequently, but without regularity.

Thursday, November 22, 2007

HSC Gives No Gratuity for Bad Service (of Bench Warrant)

State v. Owens (HSC November 19, 2007)Background. On Feb. 20, 2001, Owens was charged with one count of Abuse of a Household/Family Member in violation of HRS § 709-906 on Oahu. He pleaded guilty and was sentenced to one year of probation. He was ordered to go to Adult Service Branch for an interview with intake services. Owens never showed up. The ASB mailed him a letter seeking his presence. The letter was returned to the sender with the words "no longer at this address" stamped on the envelope. The State filed a motion for revocation of probation and resentencing on March 27, 2001. The court issued a bench warrant on the same day. No attempts were made to serve the bench warrant until November 28, 2005, four years and eight months later, on Maui. Owens filed a motion to dismiss for the State's violation of HRPP Rule 9. The motion was denied and the ICA affirmed.

HRPP Rule 9 Applies to Post-Conviction Proceedings, Including Probation Revocation. The HSC rejected the trial court's conclusion that HRPP Rule 9 applies only to post-conviction proceedings. In doing so, the HSC adopted the State's "cogent and correct" analysis. HRPP Rules 1 states that the rules of the HRPP "govern the procedure in the courts of the State in all penal proceedings," w/ exception to the provisions in HRPP Rule 54. Similarly, HRPP Rule 2 states that the "rules are intended to provide for the just determination of every penal proceeding." Finally, HRPP Rule 49 states with ringing clarity that service of a bench warrant and its proof of service "shall be governed by rule 9[.]" Thus, any distinction between pre-conviction and post-conviction proceedings is irrelevant.

So What IS Unnecessary Delay? HRPP Rule 9(c) requires that a "warrant shall be executed without unnecessary delay by the arrest of the defendant." There is no bright-line rule in determining "unnecessary delay." The test in determining whether the service arose to "unnecessary delay" depends on (1) whether the defendant was "amenable to service while the penal summons were outstanding"; and (2) whether there was a reason for the delay in serving the summons. State v. Lei, 95 Hawai'i 278, 285-86, 21 P.3d 880, 887-88 (2001) (discussing State v. Mageo, 78 Hawai'i 33, 889 P.2d 1092 (App. 1995)). This is a balancing test (and that's why the appellate courts review for an abuse of discretion), and, like many balancing acts, there are relevant factors--whether the defendant was available for service while the bench warrants were outstanding; whether there was any indication in the record that the defendant intentionally avoided service; whether the prosecution could adduce evidence that it attempted to serve during that time; and whether the prosecution could establish that any attempt to serve would be futile.

Factors Favor Owens. The HSC found that there was "unnecessary delay" in violation of HRPP Rule 9. First, even though Owens had been living in the jurisdiction all this time thereby making him available for service. Second, the State offers no reason why it took so long to serve the bench warrant. Moreover, there was no evidence showing that Owens tried to intentionally avoid service, no evidence showing that it attempted to serve the bench warrant during the four-year-eight-month period, and no evidence that any attempts during that time would have been futile. The HSC made it clear that the burden is on the State in showing these matters.

HRPP Rule 9 Clock Starts at Issuance, not Failing to Appear. The HSC rejected the ICA's theory that the timing in determining "unnecessary delay" begins when the defendant fails to obey a court order. The true timing for HRPP Rule 9 begins after the bench warrant or summons has been issued. This, after all, makes sense because service before issuance is impossible.

Links

DISCLAIMER!

The entries on this site are intended to inform the reader about the appellate opinions of the Hawai'i Supreme Court and the Intermediate Court of Appeals. The entries on this site are in no way intended to constitute or tender legal advice. And remember, there is no substitute for reading the opinions yourself.

Civil cases are not reported in full. They contain many narrow issues that would be burdensome to report. Only salient points and holdings are reported.